The EU’s “right to be forgotten” is a bad idea, and Google is handling it exactly the right way

This week, Google has begun notifying British media outlets that some of their news articles may not be available to UK audiences as a result of a European Union court decision enshrining the “right to be forgotten,” which allows people to have unpleasant information removed from Google’s search index. My colleague David Meyer argues that Google is doing this deliberately in order to create a straw man: in other words, to give the impression that the law is worse than it actually is. I disagree, however — I think Google is doing a good job of showing us why the law is a mistake, one with potentially huge consequences for free speech.

As Danny Sullivan of MarketingLand has outlined in an overview of the issue, Google has removed a number of stories from leading British news outlets — including The Guardian, The Daily Mail and the BBC — and it has been sending notices to those outlets to inform them of the removals. But it doesn’t provide much detail (or really any detail whatsoever) about why these particular stories have been blocked, who petitioned for their removal, or why some terms have been singled out and others haven’t. The articles include:

Stories from The Guardian and Daily Mail from 2010 about a Scottish soccer referee who lied about reversing a penalty (links to the Guardian story were reportedly later restored after the newspaper complained).

A Guardian article from 2002 about a man who was accused of fraud but was later found to be not guilty.

A piece from the Daily Mail about a couple who had sex on a train.

A Guardian article about how workers in France were decorating their windows with Post-It notes.

A BBC column about former Merrill Lynch chairman Stan O’Neal.

A story from The Daily Mail about staffers at the Tesco supermarket chain who criticized their employer on social media.

The point made by David and other Google critics is that in each of these cases, if the company believed that the article included in its search results is journalistically defensible, then it should be protesting against those removal attempts and forcing them to be decided by a court, because the decision that allegedly caused the removals — a ruling by the Court of Justice of the European Union — includes a clause that says data can remain if “it is justified by the preponderant interest of the general public in having access to the information in question.”

Is Google trying to stir up controversy?

By removing articles that seem to be clearly on the other side of this guideline — such as news stories about the disgraced chairman of a publicly-traded corporation, or an admission of fact by a football referee — Google’s critics argue that it is deliberately over-reacting, in an attempt to stir up controversy about a court decision whose specific application hasn’t even been decided yet by the EU’s member states, and whose outcome might not be as bad as it is being portrayed.

Notable that Google is interpreting the right to be forgotten rules in the way most likely to upset journalists

Paul Bernal, a lecturer in media law, seems to be arguing that Google deliberately removed articles by prominent journalists such as Robert Peston of the BBC — who wrote about how his column had been “cast into oblivion” by Google — in order to gain support for its campaign to blunt the force of the EU law, and Guardian staffer Chris Moran says the clumsy way in which Google has implemented the removals (including posting a note at the bottom of a search page even when nothing has been changed) is a deliberate attempt to make it look bad. As David puts it:

“If Google is trying to prove that the system is unworkable, then it’s succeeding — only the system it’s apparently operating in isn’t the system the CJEU described. It’s a straw man, a nastified version of the actual legal framework that makes that framework easier to attack.”

Let’s assume for the moment that Google has actually orchestrated this process in as ham-handed a way as possible in order to make it look more draconian than it is, and has even cherry-picked certain journalists as targets so that it can get them on its side (a Google spokesman has denied that the company is deliberately trying to make the law look bad). Whether you believe this is justified or not hinges on whether you agree with the “right to be forgotten” law in the first place. If you believe it is wrong, then having Google fight against it is just as defensible as when it tried to stand up against Chinese censorship by making it obvious that searches for terms like Tianenmen Square were being censored.

Google is doing what it can to fight a bad law

The point made by Paul Bernal, Chris Moran and David is that Google should leave all of this decision-making to the courts, and that will result in a better outcome — because a court is in a better position to make those decisions than Google is. But I think a court is just as likely, if not more likely, to make it worse, and the kinds of takedowns that Google has so far shown us are not nearly as far-fetched as Google’s critics would have you believe.

David argues that some or even all of the Google searches that have been modified so far would be covered by the “public interest” clause in EU privacy law — but at the same time, he also notes that those laws are in the process of being updated and likely strengthened as a result of rulings like the Court of Justice decision. How do we know that a court will see the public’s right to know about a football referee’s misdemeanors, or even the chairman of Merrill Lynch’s transgressions, as being stronger than the right to be forgotten? We don’t.

I know that free speech is not as sacrosanct a principle in Europe as it is in the United States, and the public’s right to know doesn’t automatically trump an individual’s right to privacy. That may be a positive social goal, but as a result of that tendency we’ve seen British courts hand down “super-injunctions” that restrict the right of the press to even mention that a court case exists, and other infringements on the right to know and freedom of the press. Do we really need more mechanisms for that kind of thing to occur? I don’t think so.

The reality is that the right to be forgotten could allow powerful individuals to effectively censor search results even when the facts contained in them are undisputedly correct and have some historical news value. That’s something worth fighting against, and Google is using all the tools at its disposal to do so. If it helps raise awareness about the issue and its drawbacks, then so much the better.